Shiv Behari Sharma vs The Addl. District Judge and Others

M.P. Saxena, J.—This is a tenant''s petition arising out of proceedings u/s 21 of U.P. Act XIII of 1972.

The opposite party No. 2 and opposite parties 3/A to 3/E are the owners of house No. 107/142 situate in Jawahar Nagar in the city of Kanpur. One portion of this house consisting of two rooms, a portion of the chajja, common latrine and bath-room are said to be in occupation of opposite parties Nos. 3/A to 3/E. Another portion of the same house consiting of two rooms, chajja, kitchen room and latrine are in possession of opposite party No. 2. The remaining portion of this house was let out to several persons including the Petitioner. The Petitioner is in possession of two rooms and chajja on the ground floor and kitchen, latrine and common bath room on the first floor. His family consists of himself, his wife, two adult sons and his parents who are dependent on him. He is employed in K.E.S.A. on a monthly salary of Rs. 160/-. The opposite party No. 2 and his brother Bisheshwar Prasad since deceased, filed an application u/s 21 of the Act for release of the portion in possession of the Petitioner on the ground of bona fide need. It was alleged that Ashok Kumar and Dinesh Kumar, grand sons of opposite party No. 2, were receving education in the village and have come to live with him in connection with their higher education. Both of them are of marriageable age and accommodation is required for them. It was also alleged that the deceased brother''s wife, her son and daughter-in-law are also living with the opposite party No. 2 and the portion in his possession is insufficient to meet his requirements:

The Petitioner contested that application, inter alia, on the grounds that Bisheshwar Prasad and certain members of his family were living in the village and were not in possession of any portion of this house liven Rameshwar Prasad, opposite party No. 2 used to visit the village occasionally. The brother''s widow of Rameshwar Prasad, her son and daughter-in-law were living in another house and not with Rameshwar Prasad. Therefore, there was no bona fide need for the landlords to have the premises released. It was further stated that from 1968 to 1970 other portions of the house had fallen vacant which the landlords had let out at enhanced rent. If they had any bona fide need they would not have done so.

The Prescribed Authority rejected the release application on the ground that Bishcshwar Prasad and some members of his family were living in the village; widow of his brother, her son and daughter-in-law are living in another house. Therefore, there is no bona fide need for the landlords for release of the accommodation. It was further held that they are not entitled to the benefit of Explanation (iv) to Section 21 of the Act. This order was passed on 15-12-1972. The landlords tiled an appeal u/s 22 of the Act and the learned Additional District Judge, Kanpur, came to the conclusion that the landlords have bona fide need for additional accommodation. He also upheld the need of the tenant but observed:

Where the needs of the landlord and tenant are equally genuine the need of the landlord is to be given preference and the accommodation is to be released in favour of the landlord.

The appeal was allowed on 31-10-1973 and the accommodation was released in favour of both the landlords. Six months'' time was granted to the tenant to vacant the premises.

On 30th of November, 1973, the tenant applied for review of the said order, inter alia, on the grounds that the brother''s widow, her son and daughter-in-law could not be regarded as members of the family of the landlords under the Act and that the learned Additional District Judge took wrong view on several points. This application was rejected on 9-11-1974 on the ground that there was no provision of review in U.P. Act, No. XIII of 1972. On 5/6-12-1974 this writ petition was filed by the tenant against the orders dated 31-10-1973 and 9-11-1974 passed by the learned Additional District Judge. During the pendency of the writ petition one of the landlords, namely, Bisheshwar Prasad died and the opposite parties Nos. 3-A to 3-E are his heirs.

The learned Counsel for the opposite party has raised two preliminary objections. Firstly, it is urged that a composite petition against two orders is legally not maintainable. Secondly, that the applicant has been guilty of laches and undue delay in filing the writ petition and as he has failed to make out any circumstance of a special nature which may be sufficient in the opinion of the court, the petition is liable to be dismissed.

The first contention is based on the ground that the appeal u/s 22 of U.P. Act XIII of 1972 was decided by the learned Additional District Judge on 31-10-1973. Thereafter an application for review of this judgment was moved and it was rejected on 9-11-1974. Validity of both these orders is impugned by means of this petition, which is not warranted by law. Reliance is placed, on the Full Bench decision of this Court in the case of Nanhoo Mal v. Mullu 1963 AWR 498 in which it has been held that in one petition the Petitioner cannot challenge two orders passed on two different dates by the same authority. In that case also the Board of Revenue had passed an order on 27-8-1960. A review application was filed against it which was rejected on 25-5-1961. A writ petition was filed on 17-8-1961 challenging both the orders. In this connection the learned Counsel for the Petitioner has two fold contentions. In the first place it is urged that this view was not approved by the Supreme Court in the case of Sonawati and Others Vs. Sri Ram and Another, . It is not at all sustainable because in the case of Nanhoo Mal v. Mullu (supra) one of the questions for consideration was whether occupation by a wrong doer without any right to the land is "cultivatory possession" within the meaning of Section 3 of the U.P. Act 31 of 1952. The Full Bench answered it in the affirmative but their lordships of the Supreme Court did not agree with this view. Nothing was said about the maintainability of one petition assailing two orders of different dates. Hence it cannot be said that the view expressed by the Full Bench on this point was dissented from.

In the second place it is argued that no petition can be rejected on this score. The defect, if any, can be cured by requiring the Petitioner to deposit additional court fees for having the second order set aside. It does not advance his case much further because inspite of the objection by the opposite party and ample opportunity at the disposal of the Petitioner, he has not chosen to deposit the requisite court fees and in its absence the defect cannot be said to have been removed and it must stare him in the face.

So far as the second objection regarding laches and undue delay on the part of the Petitioner is concerned, it is important to state that this writ petition was filed on 5/6-12-1974. The validity of orders dated 31-10-1973 and 9-11-1974 is impugned by means of this petition. Obviously the petition was filed after a lapse of about 13 months from the first order and about one month from the second order. The petition so far as it is directed against the second order, is within time but it may be stated at the very out set that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (U.P. Act 13 of 1972) does not prescribe any remedy by way of review and the review application was rightly rejected. As observed in the case of Nanhoo Mal v. Mullu (supra) if the Petitioner challenges a later order passed on the review application he can succeed only on showing that refusal to review an earlier order was refusal to exercise jurisdiction vested in it or was based on a manifestly illegal view. In the instant case there being no remedy for review under U.P. Act XIII of 1972, the learned Additional District Judge was right in rejecting the review application on this score and the writ petition against it is without any force.

So far as the petition against the order dated 31-10-1973 is concerned, it was filed after a lapse of about 13 months. In Mongey Vs. Board of Revenue and Others, it was held that this Court has not framed by rule prescribing a period of limitation for filing petition for writ of certiorari under Article 226 of the Constitution. Ordinarily in the absence of a specific statutory rule the court may be justified in rejecting a petition for a writ of certiorari against the judgment of a subordinate court or tribunal if on a consideration of all the circumstances it appears that there is undue delay. But an aggrieved party should have reasonable time within which to move the High Court for certiorari. This Court has consistently laid down the view "writ petitions under Article 226 of the Constitution should be filed as quickly after delivery of judgment of the inferior tribunal as possible. A period of 90 days which is the period fixed for appeals to the High Courts from the judgments of the courts below should be taken as the period for application for issue of writ of certiorari and that time can be extended only when circumstances of a special nature which are sufficient in the opinion of the court, are shown to exist. But in the absence of a statutory rule the period prescribed for preferring an appeal to the High Court is a rough measure. In each case the primary question is whether the applicant has been guilty of laches or undue delay. A rule of practice cannot prescribe a binding rule of limitation. It may only indicate how discretion will be exercised by the court in determining whether having regard to the circumstances of the case the applicant has been guilty of laches or undue delay". This view was followed in the case of Chandra Bhushan and Another Vs. Deputy Director of Consolidation (Regional), U.P. and Others, . Their Lordships observed:

Ordinarily in the absence of a specific statutory rule the High Court may be justified in rejecting a petition for writ of certiorari against the judgment of the subordinate court or tribunal if on a consideration of all the circumstances it appears that there is an undue delay. But the aggrieved parly should have a reasonable time within which to move the High Court. The Allahabad High Court has consistently laid down the practice that the period of 90 days which is the period fixed for appeals to the High Court should be taken as the period for application for the issue of writ of certiorari and the time can be extended only when circumstances of a special nature which are sufficient in the opinion of the court, are shown to exist.

In Bankhandi Lal Vs. Asst. Supdt. of Police and Others, this Court observed:

So far as the writ of certiorari is concerned, the rule has always been that if a person wants to seek the aid of the court in getting such a writ issued he must act with the least possible delay and if he is guilty of laches he must offer some adequate explanation. Where the explanation offered is by no means satisfactory the High Court is justified in refusing the writ petition on the ground that it was a belated one.

The same view was reiterated by the Full Bench in Nanhoo Mal v. Mullu (supra). It was observed that a writ petition must be filed without delay.

In Moon Mills Ltd. v. Industrial Court Bombay AIR 1967 SC 1450, it has been held that a writ of certiorari is legally a matter of sound discretion and will not be granted if there is much negligence or omision on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party.

In Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, this question again arose for consideration and it was held that "No relief can be given to Petitioners who without any reasonable explanation approach Supreme Court under Article 32 of the Constitution after inordinate delay.... It could not have been the intention that the Supreme Court would go into stale demands after a lapse of years." It is thus clear that the Petitioner should have filed this petition within 90 days from the date of the first order. If he failed to do so, a heavy burden lay on him to prove that he was held up by sufficient reasons from doing so for a long period of 18 months. The only ground pressed from the side of the Petitioner is that he had filed a review application against the order dated 31-10-1973. It was done as a result of advice given by his counsel and that remedy was boda fide followed till the application was rejected on 9-11-1974. The question for consideration is whether it is a circumstance of special nature which should be deemed to be sufficient to condone the delay. I am of the view that the answer to this question must be in the negative because when U.P. Act XIII of 1972 does not provide review this remedy should not have been followed. If the learned Additional District Judge had committed any error of law in construing the definition of family as given in this Act, the Petitioner should have immediately filed a writ petition instead of applying for review. Even if he was advised to file a review petition, there was nothing to prevent him from filing a wit petition simultaneously in order to show his bona fides. As held in the case of Naib Subedar Lachhman Dass Vs. Union of India (UOI )and Others, , ill-conceived remedies followed after the impugned order do not amount to circumstance of a special nature so as to condone the delay. In that case also the Appellant was misdirected in regard to the remedies which he should have adopted but what staired him in the face was that it was after considerable delay that he invoked the extra-ordinary powers of High Court under Article 226. Dismissal of the petition on this score was held to be justified.

In the case of State of Orissa Vs. Pyarimohan Samantaray and Others, also the Petitioner wasted time in making representations and it was after considerable delay that he filed a writ petition for quashing the order. Making repeated representations after rejection of one representation was held not to he a satisfactory explanation for delay.

The same view was taken by the Full Bench of this Court in Nanhoo Mal v. Mullu (supra). For all these reasons I am in judgment that the Petitioner has failed miserably to explain laches and delay on his part and his writ petition is liable to be dismissed on this score. In this view of the matter it is not at all necessary to go into the merit of this petition.

In the result, the petition is dismissed with costs on parties.